WestminsterWatch - May 2013

Toby Craig reflects on Lady Thatcher’s passing, cuts, cuts and more cuts and the challenges facing the criminal Bar

For whom the bell tolls...
A busy month in Westminster included the budget, the dreaded implementation of LASPO, the long-awaited consultation on criminal legal aid and an LSB grilling before the Justice Select Committee. We will get to all of those, but this month’s WW could only properly start in one place.

The death of a former Prime Minister is a rare thing. The death of a political figure who defined a generation is rarer still. As the bells in Lincoln’s Inn tolled (“for thee”, in case you were wondering) to mark the passing of Honorary Bencher, Lady Thatcher, news outlets across the world paused to reflect on the legacy of Britain’s only female Prime Minister.

She leaves behind a vast and uncompromising legacy, which will split opinion for many years to come. WW expresses no view on that, save to say that she was the most recognisable and caricatured figure in a political generation filled with colour and polarising views. Increasingly replaced with on-message, grey automatons; few will miss her as much as this generation of cartoonists and parliamentary sketch-writers.

Counting the pennies
Another austerity budget saw Chancellor George Osborne lay out a confident, if thoroughly depressing, financial statement. Growth forecasts were hit hard, but the government proposed measures it said would help “those who want to work and get on”. Perhaps the most interesting feature was the meticulous planning which went into it, devoid of “pasty-tax” type gaffes which have previously blighted the Chancellor’s efforts to get on the front foot.

But all this was a distant memory on 1 April as the double whammy of welfare cuts and the implementation of LASPO hit hard. There was such focus on whether or not Iain Duncan Smith could live on £53 a week, that there was insufficient scrutiny as to the scale of the legal aid cuts, which, in real terms, are significantly more brutal than the welfare changes. In terms of withdrawal of funds as a proportion of the system, the cuts to civil legal aid (over 30%) are significantly more extensive, but received far less attention.

WW can’t help but feel that the wide-ranging impact of this reform package, for good or ill, would be better discussed in a more rational manner than focusing solely on the living allowance of one, well-heeled, secretary of state. The problem, as with legal aid cuts, is that selectively picking the earnings or living standards of one individual and using that to critique an entire system is utter folly. It says much for the standards of current political debate and rhetoric that there is so little attention to the broad detail and so much on individual case studies, which make more vibrant media packages.

There was, unsurprisingly, an overwhelmingly negative response from the legal community to the LASPO changes, as the reality began to hit home. The Bar Council took the opportunity to publish a 70-page, Guide to representing yourself in court (available through the Bar Council’s website), which was sent to all MPs in England and Wales, Citizens Advice Bureaux, AdviceUK, Personal Support Units and legal advice centres to assist those who will find themselves going it alone. This is not a desirable outcome for anyone, but was a positive step to help those who now find themselves unable, effectively, to have access to justice.

Against this backdrop, the Legal Services Board’s chairman and chief executive, giving evidence before the Justice Select Committee, found themselves, once again, defending referral fees. WW has to wonder whether it is the profession or the regulator which is really looking out for the public interest.

Worth the wait..?
But all this was eclipsed by the publication of the Ministry of Justice’s very long-awaited consultation paper on criminal legal aid, entitled “Transforming legal aid: delivering a more credible and efficient system”. It struck many as an odd choice of title. Credibility and efficiency have apparently become terms of art.

The great fear of the criminal Bar in recent years has been One Case One Fee (OCOF). The good news, and surely it must be seen as good news, is that the government has not extended price competition to Crown Court advocacy. That is the single measure which almost certainly would have meant the instant death of the independent publicly-funded criminal Bar. It should not be brushed under the carpet – it is extremely significant.

On that, if on that alone, the government has listened to the Bar’s sustained lobbying. The dialogue between the Lord Chancellor and Chairman of the Bar may have been tense, but ground has unquestionably been made. But it would be wrong to suggest, in any manner, that the proposed reform package is a positive outcome for barristers and solicitors alike. The cuts are, simply put, eye-watering. A 30% cut to VHCCs aside, there will be 17.5% cuts across the board to non-PCT work. That comes on top of the very extensive cuts of recent years and all in all, the package of reforms is intended to save the MoJ £220m. The downward pressure on fees, for frontline public servants, already at breaking point, will be too much for many to bear. There can be little doubt that many law firms will go under and many barristers will be unable to continue at the Bar.

Together with the introduction of QASA from September, it is a time of enormous change at the criminal Bar. Many practitioners understandably feel worried and insecure about their futures. Politicians (and regulators) might sometimes be better served by seeking to recognise why the profession remains so viscerally angry and whether a better and more constructive approach to their dialogue with, and understanding of, the Bar might benefit all concerned.

Perhaps the greatest threat of all is the apparent consensus across Parliament that the criminal Bar needs to have its wings clipped (if not amputated). There is no love lost for the profession on the Opposition benches. The challenge for the profession is to demonstrate how it works in the public interest, not how much it earns. Succeeding in the former would have a positive impact on the latter. It will be a steep and uphill battle.